Issue Watch

2015 Issue Watch

By Floyd Abrams, Esq., Adams Lecture at Temple University Beasley School of Law, 3-16-15

A few weeks ago I read a blog post on Concurring Opinions. The post (entitled “First Amendment News”) is prepared weekly by Professor Ronald Collins and deals, in a particularly knowledgeable and even-handed manner, with the First Amendment in the courts, in legislatures, in academia, and elsewhere. In it, he summarized and attached a recent “workplan” of the American Civil Liberties Union. In eight pages, it listed nine priorities for the ACLU for 2015, ranging from reproductive rights (listed first) to mass incarcerations. Freedom of speech was not among the listed priorities and was referred to in only the most passing manner, an extraordinary omission for an organization formed for the prime purpose of defending that right and probably more associated with doing so than any other entity. » Read More

The release of the rules had been eagerly anticipated by advocates and lawmakers, as well as broadband and technology companies. The publication on Thursday resulted in few surprises; the F.C.C. is set to decide what is acceptable on a case-by-case basis. The regulations include a subjective catchall provision, requiring “just and reasonable” conduct.

The rules reclassify high-speed Internet as a telecommunications service rather than an information service, subjecting providers to stricter regulation under Title II of the Communications Act of 1934. Their aim is to protect the open Internet, advancing principles of so-called net neutrality by prohibiting broadband providers from elevating one kind of content over another.

With the F.C.C. set to decide on matters individually, the agency moves into a new position of prominence and a more active controlling role, one that is widely expected to be challenged in court by broadband providers like Verizon. » Read More

The Federal Communications Commission delivered a thrilling victory to Internet activists last week by approving sweeping net neutrality regulations, but critics already are plotting how to kill the rules in court.

Comcast has warned that "we all face inevitable litigation and years of regulatory uncertainty." AT&T has pointed to "the uncertainty of litigation, and the very real potential of having to start over – again – in the future." Industry lobbying associations like CTIA–the Wireless Association, the National Cable and Telecommunications Association, and the American Cable Association also have made it clear that they are considering lawsuits.

The FCC's rules bar Internet providers from blocking any online content, selectively slowing down traffic, or offering "fast lanes" for sites that pay more. Supporters of the regulations argue that they are critical for preventing Internet providers from acting as "gatekeepers" and restricting what people can access online. The opponents consider the rules an illegal power grab that will burden companies, ultimately making Internet service slower and more expensive for everyone. » Read More

As a young reporter in the 1970s, I covered the Interstate Commerce Commission (ICC). Created in 1887, the ICC regulated the nation's railroads and sought to protect the public against abusive freight rates. Congress deregulated the railroads in 1980 and ultimately abolished the ICC. The verdict was that the agency had so weakened the industry that a government takeover might be necessary. Deregulation was a desperate alternative to nationalization.

I mention all this because there are obvious parallels between the Internet today and the railroads in the late 19th century. Like the railroads then, the Internet today is the great enabling technology of the age. Like the railroads then, Internet companies inspire awe and dread. And now there's another parallel: the resort to regulation. » Read More

The day after the FCC’s net neutrality vote, Washington was downright frigid. I’d spoken at three events about the ruling, mentioning at each that the order could be overturned in court. I was tired and ready to go home.

I could see my Uber at the corner when I felt a hand on my arm. The woman’s face was anxious. “I heard your talk,” she said. “If net neutrality is overturned, will I still be able to Skype with my son in Turkey?”

The question reveals the problem with the supposed four million comments submitted in support of net neutrality. Almost no one really gets it. Fewer still understand Title II, the regulatory tool the FCC just invoked to impose its conception of net neutrality on the Internet. » Read More

Today the eyes of many people around the world have been focused on Washington, DC, as the U.S. Federal Communications Committee (FCC) held an Open Meeting where they voted on a Report and Order around "Protecting and Promoting the Open Internet". More commonly known as the ruling on "Network Neutrality," the vote today represents what is a potentially major shift in the longstanding policy of the United States with regard to regulation of Internet services.

The Internet Society has always supported the fundamental values of a global, open Internet grounded in transparency, access and choice. We believe that openness should be the guiding principle that continues to enable the success and growth of the Internet. The goals of the U.S. Federal Communication Commission’s (FCC) Open Internet Order – providing U.S. consumers with meaningful transparency, addressing concerns over blocking and discrimination, clarifying the role of reasonable network management, and enabling the permissionless innovation that has led to the success of the Internet today – are all really important. » Read More

With lots of input, including from the founder of the Internet, but no real surprises, a contentious FCC voted 3-2 along party lines Thursday (Feb. 26) to reclassify broadband as a telecom service under some Title II regulations, a move that prompted cheers from net activists who have been pushing for Title II for over a decade, but will prompt lawsuits that could tie up the rules in court for years.

Republican commissioners blasted the order, suggesting it was utility-style regs in Title II-lite clothing and that the rate regs and unbundling and new taxes that the FCC said it was forbearing would materialize regardless.

The order creates bright-line rules against blocking, throttling, or paid prioritization – so–called "fast lanes." It also allows a case–by–case review of interconnection complaints as potential network neutrality violations.

The rules will not become official until published in the Federal Register, which will take a few weeks, and will then be challenged in court, though they will remain in effect unless stayed by the FCC (unlikely) or a court. » Read More

Congressional Republicans are continuing to push full steam ahead with plans to stop federal regulators’ “power grab of the Internet,” according to a top senator.

Sen. John Thune (R-S.D.), the head of the Commerce Committee and the third-ranking Senate Republican, said he had no intention to give up the fight.

“One way or another, I am committed to moving a legislative solution, preferably bipartisan, to stop monopoly-era phone regulations that harm Internet consumers and innovation,” he said in a statement late Tuesday evening.

“Any claims that Republicans have conceded or surrendered to the Obama administration’s power grab of the Internet through FCC [Federal Communications Commission] action is a mischaracterization of our ongoing efforts.”

The comment came after the publication of a New York Times story claiming that Republicans had “conceded” the issue to the Obama administration. » Read More

A Democrat on the Federal Communications Commission wants to narrow the scope of new net neutrality rules that are set for a vote on Thursday, The Hill has learned.

Mignon Clyburn, one of three Democrats on the FCC, has asked Chairman Tom Wheeler to roll back some of the restrictions before the full commission votes on them, FCC officials said.

The request – which Wheeler has yet to respond to – puts the chairman in the awkward position of having to either roll back his proposals, or defend the tough rules and convince Clyburn to back down.

It’s an ironic spot for Wheeler, who for months was considered to be favoring weaker rules than those pushed for by his fellow Democrats, before he reversed himself about backing tougher restrictions on Internet service providers. » Read More

On Thursday the Federal Communications Commission will stop accepting public comments on the divisive plan to regulate the Internet as a public utility before bringing the matter to vote on Feb. 26. The latest lunge at more Web regulation puts global Internet freedom and prosperity in jeopardy and fatally undermines decades of bipartisan consensus on America’s foreign policy for the Internet.

Some proponents of more Internet regulation – for instance, President Obama – maintain that “the strongest possible” laws are needed to prevent Internet service providers, such as cable and phone companies, from acting in anticompetitive ways and harming consumers by, say, blocking selected Web destinations. They argue that the FCC must declare the Internet a public utility under Title II of the Communications Act of 1934, which was designed for the Ma Bell phone monopoly. FCC Chairman Tom Wheeler announced last month that he would align his proposals with the White House.

This represents a stunning reversal of the policies of the Clinton and Bush administrations. Both presidencies pursued a highly successful “hands-off” approach toward the Internet and argued that the dynamic network should not be regulated like a public utility domestically or internationally. The result: The Internet is the greatest global deregulation success story of all time. » Read More

COPENHAGEN, Denmark (AP) - At least one gunman opened fire Saturday on a Copenhagen cafe, killing one man in what authorities called a likely terror attack during a free speech event organized by an artist who had caricatured the Prophet Muhammad.

The shooting, which also wounded three police officers, came a month after extremists killed 12 people at a satirical newspaper in Paris that had also sparked Muslim outrage with its depictions of Muhammad.

Swedish artist Lars Vilks, who has been repeatedly threatened after depicting Muhammad as a dog in 2007, organized and attended Saturday's event but was not hit by gunfire, police said.

"I saw a masked man running past," said Helle Merete Brix, one of the event's organizers. "I clearly consider this as an attack on Lars Vilks." » Read More

We have been negotiating between the new and the old, the foreign and the familiar, tolerance and censorship forever. But digital communications and global commerce are remaking the world: Last year, there were more than 1 billion international travelers. Some 2.7 billion people around the world are online. Smartphones and satellite dishes are the symbols of our time, pushing people everywhere to demand more control over their futures, greater openness and more responsiveness from governments.

These trends draw previously separate cultures into contact with one another: Turkish soap operas are popular in the Balkans, and Taiwanese animators skewer Scottish secession efforts. But technologies that convene different cultures do not always help them interact peacefully, as the Paris attacks on Charlie Hebdo and the kosher grocery show.

As those tensions rise, governments and reactionary groups resort to nationalism, victimization and suppression to keep foreign or offending speech at bay. The Pew Research Center found that, as of 2011, nearly half of the world’s countries punished blasphemy, apostasy or defamation of religion. Russia has just legislated harsher punishments for those guilty of offending religious sensibilities, and violent protests in Pakistan halted attempts to soften anti-blasphemy laws. China employs more than 2 million people to monitor online activity and support government censorship, according to the BBC.
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As the Federal Communications Commission prepares to treat Internet companies like public utilities under Title II of the 1934 Communications Act, it is worth asking how government regulation of the Internet would actually work. Conveniently enough, Europe has been experimenting with heavy-handed Internet regulation since 2002, and the results are a warning of what the U.S. can expect.

That is the conclusion of a new study by our organization, the Internet Innovation Alliance, a coalition of businesses and nonprofits. Over the past two decades, the U.S. has benefited from a bipartisan, light-touch broadband regulatory regime that has spurred more capital investment, more competition and – perhaps most important – more broadband capacity than in the European Union, which has a larger population and similar economy. » Read More

A House oversight committee on Friday said it was launching an investigation into whether the White House improperly influenced the Federal Communications Commission on its new rules for how broadband providers treat traffic on their networks.

Rep. Jason Chaffetz (R., Utah), chairman of the House Oversight and Government Reform Committee, wrote to FCC Chairman Tom Wheeler on Friday demanding all documents and communications between the FCC and the White House or other executive-branch agencies on the issue, along with all internal discussion at the FCC.

The plan would use strong utility-like rules to regulate broadband companies, an approach largely in line with President Barack Obama’s call in November for the “strongest possible rules” to protect net neutrality – the principle that all Internet traffic should be treated equally. » Read More

Republican lawmakers are vowing to fight the Federal Communications Commission’s new proposal to heavily regulate broadband Internet, saying it represents regulatory overreach and is the product of White House meddling in an independent agency.

FCC Chairman Tom Wheeler on Wednesday made public the outlines of a proposal that would ban broadband providers from blocking, slowing down, or speeding up certain websites in exchange for payment. His plan is largely in line with President Barack Obama’s November call for the “strongest possible rules” to protect net neutrality – the principle that all Internet traffic should be treated equally. The commission plans to vote on the proposal Feb. 26.

Republicans said they were particularly upset because they have been working on legislation that would achieve the same goals Mr. Wheeler has laid out for broadband regulation – that the companies cannot favor or discriminate against certain kinds of content that they deliver to consumers for payment. The difference is that the Republican plan wouldn't reclassify broadband as a utility under telecommunications law, as Mr. Wheeler would do. » Read More

"Here is President Obama's 332-page plan to regulate the Internet. I wish the public could see what's inside." -Tweet from FCC Commissioner Ajit Pai on Feb. 6.

A Republican member of the Federal Communications Commission wants followers to know there are 332 pages of proposed Internet regulations that will not be publicly released until well after they are approved.

Commissioner Ajit Pai on Friday took to Twitter to goad President Obama and FCC Chairman Tom Wheeler over Wheeler's proposed net neutrality order, which was circulated privately among the commissioners Thursday.

Pai tweeted a picture of himself holding the hundreds of pages of regulations in front of a portrait of Obama, calling them the president's rules.

The rules proposed by Wheeler adhere largely with the recommendations President Obama gave to the agency last year. And Republicans have accused the independent agency, led by Wheeler, of bending to White House pressure.
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FCC chairman Tom Wheeler has made official what he had already signaled for weeks. In an op-ed in Wired Magazine online, Wheeler said Wednesday, "I am proposing that the FCC use its Title II authority to implement and enforce open internet protections."

He plans to circulate the draft of new network neutrality rules to the other commissioners Feb. 5.

"Using this authority, I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC," he said. "These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply – for the first time ever – those bright-line rules to mobile broadband. My proposal assures the rights of internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission." » Read More

Newton N. Minow’s legacy as FCC Chairman often is summarized by the “vast wasteland” catchphrase in his speech to the National Association of Broadcasters several months after he took office. Minow was an activist FCC Chairman appointed by an activist Democratic President. His speech sent shockwaves among television executives nationwide. Minow’s powerful metaphor also resonated with the public at large, with many agreeing that broadcasters were aiming too low in developing entertainment programs with mass audience appeal.

But over time, and particularly within the communications policymaking community, Chairman Minow’s impact was more profound…. » Read More

Around 2 a.m. on December 12, four students approached the apartment of Omar Mahmood, a Muslim student at the University of Michigan, who had recently published a column in a school newspaper about his perspective as a minority on campus. The students, who were recorded on a building surveillance camera wearing baggy hooded sweatshirts to hide their identity, littered Mahmood’s doorway with copies of his column, scrawled with messages like “You scum embarrass us,” “Shut the fuck up,” and “DO YOU EVEN GO HERE?! LEAVE!!” They posted a picture of a demon and splattered eggs.

This might appear to be the sort of episode that would stoke the moral conscience of students on a progressive campus like Ann Arbor, and it was quickly agreed that an act of biased intimidation had taken place. But Mahmood was widely seen as the perpetrator rather than the victim. His column, published in the school’s conservative newspaper, had spoofed the culture of taking offense that pervades the campus.

PARIS – Residents of this traumatized city stood in long lines to snap up copies of the latest issue of Charlie Hebdo on Wednesday, defiantly affirming a commitment to freedom of speech a week after a terrorist attack on the newspaper’s offices left a dozen people dead and ignited days of violence and manhunts.

In its own show of defiance in the face of threats from Islamist militants, the satirical weekly featured a cartoon of the prophet Muhammad on the cover of its first issue since the massacre. He is shown shedding a tear and holding a sign that says “Je Suis Charlie” (I am Charlie) under the headline: “Tout Est Pardonné” (All Is Forgiven).

Newsstands across Paris quickly sold out of the latest edition of the paper, whose previous content about Islam has broken taboos and enraged militant Muslims. Lines snaked for blocks as some newsstands ran out of copies minutes after opening, leaving Parisians dashing madly from kiosk to kiosk in search of a copy.

Highlighting the extraordinary demand, the paper printed 3 million copies, some 50 times its normal print run.

The biggest hit on Broadway for the last few years has been The Book of Mormon, a satirical musical comedy that mocks the Church of Jesus Christ of Latter-day Saints. But rather than venting outrage, organizing protests, or seeking to shut down the play in New York or on its national tour, Mormons have commendably turned the other cheek. Unfortunately, many Muslims around the world are not as easygoing or wise.

As the terror attack on the French satirical magazine Charlie Hebdo reminds us today, Islamists are determined to enforce a ban on offenses to their sensibilities. Those who draw mocking cartoons about Islam’s prophet or leaders of terror groups understand that they are taking their lives into their hands. There is a reason that the same team that produced the South Park television series chose the Mormons as the butt of their Broadway joke rather than Muslims. But while that choice was understandable, the question we need to be asking ourselves today is whether the West is prepared to go on tolerating the offense to our values of free speech that lies behind the tragedy in Paris. » Read More

When I was editor there, The Onion was located in the heart of Manhattan and the one person manning our front entrance was our petite, tattooed office manager, Jessie. She was the definition of unthreatening, and we used to joke that she was the only thing standing between us and some heavily armed radicals, should any ever become enraged by something we put in print. Right now, that joke makes me sick to my stomach.

Twelve people were murdered at the offices of Charlie Hebdo, a French satirical newspaper, today, apparently for doing the very thing http://www.msnbc.com/topics/charlie-hebdo does: satire. These people – including one guest and one police officer – are dead. They were cartoonists and editors and humorists. People whose job in life was to point at hypocrisy and laugh at it; to ridicule hate; to make us all try to see our own failings as humans. And they were killed for it.

For those who would trivialize the idea, this was what an actual attack on freedom looks like.

Our joke at The Onion was, like most of our jokes, borne out of some reality. We received hateful letters and emails on a semi-regular basis. I’ve personally spoken on the phone with at least two individuals who threatened to rape me and kill my family. At one point, we even had to call the police. But I never could have imagined anything like this. » Read More

A brutal attack on French satirical newspaper Charlie Hebdo over cartoons depicting the prophet Mohammad has jolted Hollywood, escalating concerns by artists and producers that major studios and networks may avoid greenlighting movies and TV shows with potentially inflammatory content.

Wednesday’s murder of 12 people at the newspaper comes on the heels of the hacking catastrophe at Sony Pictures. The FBI pinned that act of cyberterrorism on North Korea as retaliation over the studio’s release of “The Interview,” an R-rated comedy that depicts the assassination of that country’s leader, Kim Jong-un.

Freedom of speech is under attack, but, given Sony’s initial decision to pull the release of the “The Interview” and its subsequent about-face, it’s not clear how rousing a defense the entertainment business is willing to mount in the midst of financial pressures, political dangers and the threat of violence.

“All of this is deeply concerning to me because increasingly we live in a culture of fear,” said documentary director Joe Berlinger, whose films include “Paradise Lost” and “Crude.” “This culture of fear is economically based, and that doesn’t mix well with freedom of expression.” » Read More

CNN is not showing detailed images of cartoons from the Charlie Hebdo magazine that could be viewed as offensive to Muslims, CNN senior editorial director Richard Griffiths said in a message sent to CNN staff Wednesday afternoon. Griffiths' email:

"Although we are not at this time showing the Charlie Hebdo cartoons of the Prophet considered offensive by many Muslims, platforms are encouraged to verbally describe the cartoons in detail. This is key to understanding the nature of the attack on the magazine and the tension between free expression and respect for religion.

"Video or stills of street protests showing Parisians holding up copies of the offensive cartoons, if shot wide, are also OK. Avoid close-ups of the cartoons that make them clearly legible.

"It's also OK to show most of the protest cartoons making the rounds online, though care should be taken to avoid examples that include within them detailed depictions of the Charlie Hebdo cartoons."

Griffiths' memo comes after several news organizations came under fire for censoring various Charlie Hebdo cartoons that depict Muhammad. The Associated Press, The New York Daily News and The Telegraph were among those that blurred or cropped photos of the covers. » Read More

I spent part of last month in sunny Doha, which hosted the annual International Telecommunication Union (ITU) Telecom World Forum. The ITU, based in Geneva, is the specialized agency of the United Nations that historically has focused on issues such as global spectrum management and the allocation of orbital slots for communications satellites.

The centerpiece of the Forum was a vast exhibition area in the Qatar National Convention Center, filled with high-tech displays and booths from various countries touting how they were rapidly-accelerating digital nations worthy of increased interest and investment. At any given time, there were only a few dozen of the 3,500 attendees walking through. The anemic foot traffic would have led many to conclude that the gathering was lacking. Why would so many people from around the world, myself included, assemble for a few days to pick up a handful of brochures that they could easily download from various websites? » Read More